Maccarone v. Mark Mandell-Brown, M.D., Inc.

2025 Ohio 5071

• Court: Ohio Court of Appeals
• Decided: November 7, 2025
• Docket: C-250052
• Status: Published

Opinion

[Cite as Maccarone v. Mark Mandell-Brown, M.D., Inc., 2025-Ohio-5071.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

GINA MACCARONE, M.D., : APPEAL NO. C-250052 TRIAL NO. A-2404138 Plaintiff-Appellee, :

vs. :

MARK MANDELL-BROWN, M.D., : JUDGMENT ENTRY INC.,

Defendant/Counterclaim : Plaintiff-Appellant,

and :

MARK MANDELL-BROWN, M.D., :

Counterclaim Plaintiff- : Appellant,

MEGHAN JOHNSON, et al., :

Defendants. :

This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed, and the appeal is dismissed in part. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed 50 percent to Mark Mandell-Brown, M.D., Inc., and 50 percent to Mark Mandell-Brown, M.D. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27. OHIO FIRST DISTRICT COURT OF APPEALS

To the clerk: Enter upon the journal of the court on 11/7/2025 per order of the court. By:_______________________ Administrative Judge [Cite as Maccarone v. Mark Mandell-Brown, M.D., Inc., 2025-Ohio-5071.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

GINA MACCARONE, M.D., : APPEAL NO. C-250052 TRIAL NO. A-2404138 Plaintiff-Appellee, :

MARK MANDELL-BROWN, M.D., : OPINION INC.,

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Appeal Dismissed in Part

Date of Judgment Entry on Appeal: November 7, 2025

The Janszen Law Firm and August T. Janszen, for Plaintiff-Appellee Gina Maccarone, M.D.,

Hemmer Wessels McMurtry PLLC and Scott R. Thomas, for Defendant/Counterclaim Plaintiff-Appellant Mark Mandell-Brown, M.D., Inc., and Counterclaim Plaintiff- Appellant Mark Mandell-Brown, M.D. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Judge.

{¶1} This dispute arises between an employer and several former employees.

The case was initiated by plaintiff-appellee Gina Maccarone, M.D., when she filed a

complaint “for declaratory judgment, temporary restraining order, preliminary

injunction, and compensatory damages” against her former employer, defendant-

appellant Mark Mandell-Brown, M.D., Inc., (“MMBI”). Her claims arose from an

alleged unlawful covenant not to compete (“the noncompete agreement”) in her

employment agreement with MMBI.

{¶2} Thereafter, a flurry of other claims, and parties, were added to the case.

First, MMBI, in combination with Mark Mandell-Brown, M.D. (“Dr. Mandell-

Brown”), filed several counterclaims—see Civ.R. 13(H)—against Dr. Maccarone, and

also initiated several other claims against three other former employees of MMBI,

Meghan Johnson, Melissa Hargis, and Kendall Hemsath. These claims included

conversion, unjust enrichment, defamation, “tortious interference with contract and

business relations,” breach of fiduciary duty, breach of duty of good faith and loyalty,

civil conspiracy, breach of contract, declaratory judgment, injunctive relief, and

punitive damages. Relevant here, MMBI sought a declaratory judgment that the

noncompete agreement with Dr. Maccarone was valid and enforceable, and

“preliminary and permanent injunctive relief to the extent necessary to enforce the

restrictive covenant because it has no adequate remedy at law.” Next, Dr. Maccarone

amended her complaint to add claims against MMBI for wrongful discharge and

punitive damages. Then, defendant Hemsath filed counterclaims against MMBI and

Dr. Mandell-Brown for abuse of process and punitive damages. Further, MMBI

amended its responsive pleading to Dr. Maccarone to add another counterclaim for

breach of contract. Several motions to dismiss were also filed by and against various

4 OHIO FIRST DISTRICT COURT OF APPEALS

parties.

{¶3} Intermixed within the flurry of pleadings and responsive motions, Dr.

Maccarone filed a motion for a preliminary injunction. After responsive briefing and

a hearing, the trial court granted the motion, enjoining enforcement of the

noncompete agreement between MMBI and Dr. Maccarone. In doing so, the trial

court denied MMBI’s “cross-motion” for a declaratory judgment that the noncompete

agreement was enforceable. MMBI and Dr. Mandell-Brown—claiming to both be

“defendants”—filed a notice of appeal from this order, and it is this interlocutory order

that is the subject of this appeal. The remaining litigation is still ongoing in the trial

court.

{¶4} MMBI and Dr. Mandell-Brown assert a single assignment of error,

arguing that the trial court erred in granting Dr. Maccarone’s motion for a preliminary

injunction. For the reasons that follow, we dismiss the appeal of Dr. Mandell-Brown

for lack of standing, and we overrule MMBI’s sole assignment of error and affirm the

judgment of the trial court.

I. The Relevant Restrictive Covenants in the Employment Agreement

{¶5} On September 21, 2022, Maccarone and MMBI entered into a two-year

employment agreement, beginning on October 1, 2022.1 Among other things, the

agreement contained the following restrictive covenants:

(a) Employee agrees that during the terms of this Agreement,

and for a period of two (2) years after the termination of Employee’s

employment with the practice, within the Restricted Area, Employee

shall not, directly or indirectly:

1 The compensation provisions of the employment agreement were amended in October 2023, with

all other provisions of the agreement remaining in full force and effect.

5 OHIO FIRST DISTRICT COURT OF APPEALS

(i) Engage, individually, in partnership or through a

corporation or any entity as a proprietor, owner,

manager, employee, stockholder, consultant,

independent contractor, or otherwise, in the practice of

facial and/or body cosmetic medicine, or liposuction;

(ii) Solicit or contact anyone who, during the terms of this

Agreement, was a patient of the Practice, for purposes of

continuing to provide any services to those individuals; or

(iii) Hire, solicit or, [sic] encourage any person working

for the Practice to leave the employment of the Practice.2

(b) As used herein:

(i) ‘Restricted Area’ means a fifteen (15) mile radius ‘as

the crow flies’ of the Practice’s main office at 10735

Montgomery Road, Cincinnati, Ohio 45242 and a fifteen

(15) mile radius of the Practices satellite office at 1512

Yankee Park Place, Centerville, Ohio 45458 (or any new

Dayton/Centerville area office location established

during the time of employee employment). The Parties

agree that the Commonwealth of Kentucky is excluded

from the ‘Restricted Area.’

(ii) The phrase ‘the practice of facial and/or body

cosmetic medicine, or liposuction’ shall be construed

2 For purposes of this opinion, the restrictive covenant set forth in provision (a)(i) is referred to as

“the noncompete agreement” and the restrictive covenant set forth in provision (a)(ii) is referred to as “the nonsolicitation agreement,” while all restrictive covenants in provision (a) are cumulatively referred to as “the restrictive covenants.”

6 OHIO FIRST DISTRICT COURT OF APPEALS

broadly to include the procedures typically performed by

physicians in these specialties. For avoidance of doubt,

the covenants of Section 7(a) do not prohibit Employee

from working after the termination of employment with

the Practice in another generally recognized medical

specialty, including without limitation, general surgery.

(c) Employee represents and acknowledges that enforcement of

the covenants contained in this Agreement, including without

limitation, the scope of medical practice, will not prevent Employee

from earning a livelihood as Employee has the necessary qualifications

and ability to reasonably expect to find work.

(d) The Employee acknowledges that the terms and conditions

of the restrictive covenants in this Section 7 are reasonable and

necessary for the protection of the Practice’s business, trade secrets and

confidential information and to prevent damage or loss to the Practice

as a result of actions taken by the Employee. The purpose of the above

covenants are to protect the Practice from the irreparable harm it will

suffer if Employee competes in its territory after having been employed

by the Practice and introduced to its referring physicians and patients,

and after learning the Practice’s special medical procedures, business

procedures, office and practice policies and the special and confidential

professional procedures developed by the Practice and its employed

physicians and/or taught to Employee in the course of the Employee’s

employment relationship. EMPLOYEE UNDERSTANDS THAT

EMPLOYEE’S EMPLOYMENT IS OFFERED SUBJECT TO SUCH

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COVENANTS AND THE EMPLOYEE FREELY ACCEPTS SUCH

LIMITATION. If any provision of this Section relating to the restrictive

period, scope of activity restricted and/or territory described herein

shall be declared by a court of competent jurisdiction to exceed the

maximum time period, scope of activity restricted or geographical area

such court deems reasonable and enforceable under applicable law,

Employee and the Practice agree that the time period, scope of activity

restricted and/or area of restrictions held reasonable and enforceable

by the court shall thereafter be [the] restrictive period, scope of activity

restricted and/or the territory applicable to the restrictive covenant

provisions of this Section.

II. Dr. Mandell-Brown is Not a Proper Appellant

{¶6} As an initial matter, the notice of appeal was filed by both MMBI and

Dr. Mandell-Brown, claiming to both be “defendants.” However, Dr. Mandell-Brown

is not a “defendant” of Dr. Maccarone’s claims. Dr. Maccarone only asserted claims

against MMBI. Further, while Dr. Mandell-Brown appears to have joined some of

MMBI’s counterclaims under Civ.R. 13(H), the counterclaims relevant to this appeal

do not reveal Dr. Mandell-Brown as an additional party asserting those claims.

{¶7} In the list of “causes of action” set forth in the original filed

“counterclaim and complaint” against Dr. Maccarone and the several new defendants,

two claims are relevant here: the claim for a declaratory judgment and the claim for

injunctive relief. While both claims begin by stating in the first paragraph a general

statement that “MMB[I] and Dr. Mandell-Brown incorporate each of the allegations…”

previously set forth in the document, the paragraphs seeking relief for each claim only

pertain to MMBI. First, the declaratory-judgment claim sets forth the relevant

8 OHIO FIRST DISTRICT COURT OF APPEALS

provisions of the employment agreement, states that “an actual controversy exists

between Dr. Maccarone and MMB[I] regarding the enforceability of the Restrictive

Covenants,” and asserts that “MMB[I] is entitled to an order declaring that the

Restrictive Covenants are valid and enforceable as written.” (Emphasis added.)

Second, the claim for injunctive relief asserts, “MMB[I] is entitled to preliminary and

permanent injunctive relief to the extent necessary to enforce the Restrictive

Covenants because it has no adequate remedy at law.” (Emphasis added.) This is

different from the defamation, civil-conspiracy, and punitive-damages claims that

assert that both MMBI and Dr. Mandell-Brown were damaged by the actions at issue

in the claims. (“As a direct and proximate result of the conduct of Ms. Johnson and

Dr. Maccarone, MMB[I] and Dr. Mandell-Brown have been damaged, and will

continue to suffer damages, in an amount exceeding the jurisdictional threshold of this

Court to be proven at trial”; “As a direct and proximate result of the tortious conduct

of Dr. Maccarone and the Third-Party Defendants, MMB[I] and Dr. Mandell-Brown

have suffered damage herein, in an unknown amount exceeding the jurisdictional

threshold of this Court to be proven at trial”; “MMB[I] and Dr. Mandell-Brown are

entitled to an award of punitive damages, costs, and attorney’s fees.”). Further, the

later filed “Amended Counterclaim” appears to have only been filed by MMBI (“Now

comes [MMBI], by and through counsel, and for its amended Counterclaim against

Plaintiff Gina Maccarone, M.D., states . . .”), only added a claim by MMBI against Dr.

Maccarone for breach of contract, and did not make any changes to the declaratory-

judgment or injunctive-relief claims.

{¶8} Notably, the employment agreement is only between MMBI and Dr.

Maccarone. Further, the memorandum in opposition to Dr. Maccarone’s motion for

a preliminary injunction and the combined responsive motion for a declaratory

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judgment that the noncompete agreement was enforceable was only submitted by

MMBI. Thus, the trial court’s order only addressed the “Cross-Motion for Declaratory

Relief” filed by the “Defendant,” which was MMBI.

{¶9} “Generally, a party lacks standing to bring an appeal to protect the rights

of a third party.” Hartford Fire Ins. Co. v. Debra-Kuempel, Inc., 2024-Ohio-5830, ¶

45 (1st Dist.), citing Axline v. Kevin R. Conners, LLC, 2015-Ohio-4679, ¶ 43 (10th

Dist.). “This is because only a party aggrieved by an order may bring an appeal.” Id.,

citing Axline at ¶ 43. “A party is aggrieved by an order and has standing to appeal the

order if a party has a ‘present interest in the subject matter of the ligation which has

been prejudiced by the judgment of the lower court.’” Id., Willoughby Hills v. C.C.

Bar’s Sahara, Inc., 64 Ohio St.3d 24, 26 (1992).

{¶10} In Hartford, this court held that a party lacked standing to appeal a

judgment in favor of a third-party defendant where the appealing party (the plaintiff,

asserting a subrogation claim) lacked an interest in the dispute between the defendant

and the third-party defendant (an indemnification and contribution claim) where the

defendant’s potential recovery from the third-party defendant “would have no

immediate effect” on the plaintiff’s claims against the defendant and the plaintiff had

no claims against the third-party defendant. Id. at ¶ 48.

{¶11} Here, Dr. Mandell-Brown’s claims in the case against Dr. Maccarone

include defamation, civil conspiracy, and punitive damages. The defamation claim

pertains to information allegedly provided by Dr. Maccarone to the Ohio State Medical

Board. The civil-conspiracy claim appears to derive from alleged acts of Dr.

Maccarone and the other employees that occurred during their employment with

MMBI (e.g., converting company property for personal use, awarding business

promotions to family members, directing clients to Dr. Maccarone instead of Dr.

10 OHIO FIRST DISTRICT COURT OF APPEALS

Mandell-Brown, promoting similar services at other entities). The punitive-damages

claim is based on “willful and wanton conduct exhibiting reckless disregard for the

rights of MMB[I] and Dr. Mandell-Brown.” None of these claims appear to pertain to

the enforceability of the noncompete agreement, and it does not appear that any of

these claims would be affected by the preliminary injunction.

{¶12} Further, the employment agreement specifically states that the

restrictive covenants are necessary to protect “the Practice’s business, trade secrets

and confidential information and to prevent damage or loss to the Practice as a result

of actions taken by the employee.” (Emphasis added.) Even further, it states that the

purpose of the restrictive covenants is

to protect the Practice from the irreparable harm it will suffer if

Employee competes in its territory after having been employed by the

Practice and introduced to its referring physicians and patients, and

after learning the Practice’s special medical procedures, business

procedures, office and practice policies and the special and confidential

professional procedures developed by the Practice and its employed

physicians and/or taught to Employee in the course of the Employee’s

employment relationship.

(Emphasis added.)

{¶13} In Tortbeck v. Indus. Mfg. Co., 2015-Ohio-3041 (1st Dist.), this court

held that a principal shareholder and president of a manufacturing company lacked

standing to appeal a judgment on certain claims asserted in the case—

misappropriation of trade secrets and breach of the duty of loyalty—where the officer,

in his individual capacity, did not allege an interest in these specific claims in the

complaint and it was the company that held the enforceable rights on the claims—and

11 OHIO FIRST DISTRICT COURT OF APPEALS

not the officer—as the duty of loyalty is owed to the employer, not its officers, and the

company owns the company’s trade secrets, not the officer. Id. at ¶ 16-17. Accordingly,

this court held, “Because [the officer] did not raise these claims in the trial court and

was not aggrieved by the judgment relating to misappropriation of trade secrets and

the duty of loyalty, he lacks standing to challenge the trial court’s judgment as it relates

to those claims.” Id. at ¶ 18.

{¶14} Here, Dr. Mandell-Brown is the shareholder and president of MMBI.

However, he did not assert any claims pertaining to the employment agreement below

and, under the terms of the employment agreement, it is the practice that holds the

enforceable rights at issue. For these reasons, we hold that Dr. Mandell-Brown lacks

standing to appeal from the trial court’s judgment. We therefore dismiss his appeal.

III. Background

A. As Provided by Dr. Maccarone

{¶15} Dr. Maccarone lives in Indian Hill with her husband, a “semi-retired

cardio and thoracic surgeon,” and two stepchildren. She went to medical school at the

University of Cincinnati (“UC”) and trained at Good Samaritan Hospital for five years

doing general surgery. She then completed a fellowship in trauma and critical care at

UC and worked at Christ Hospital in a general-surgeon and critical-care position. She

worked in this position at Christ Hospital for almost eight years. When she left this

position in 2021, her salary was $450,000 a year. In this position, she “did a lot of

minimally invasive surgery, robotic surgery, abdominal surgery, [and] skin cancer

surgery,” and “started a medical spa” for cosmetic treatments. She testified, “I always

had a cosmetic disposition with all of my surgery patients as far as closures, scarring,

those kinds of things.” While at Christ Hospital, she was marketed as a “highly skilled

surgeon,” and provided various media content for patient engagement and general-

12 OHIO FIRST DISTRICT COURT OF APPEALS

education purposes. In her Instagram marketing, she dubbed herself, “the

Surgeonista.”

{¶16} Dr. Maccarone always had an interest in cosmetic surgery and did

“several months of plastic surgery during [her] general surgery training.”

Additionally, while working at Christ Hospital, she took “courses,” learned how to do

“injectable treatments,” and started the medical spa because of her interest in cosmetic

surgery. Once she reached a point in her career that she felt like she wanted

“something more,” she looked into the American Academy of Cosmetic Surgery

fellowship training. This is how she “found” Dr. Mandell-Brown.

{¶17} She chose to complete this one-year program “where all you learn is

cosmetic surgery,” instead of the two-to-three year “classic plastic and reconstructive

training program.” This program allowed her to do “solely cosmetic surgery,” like

“breast, tummy, [and] liposuction,” rather than “microsurgery, reconstruction, burn

surgery, [or] flap surgery.” In other words, she testified that the shorter program (the

“ABCS certification”) allows “graduates to do the type of surgery that they like to do

without having to learn these other skills learned during plastic and reconstructive

training” (the “PRS certification”).

{¶18} Dr. Maccarone testified that “[m]ost hospitals in Cincinnati require that

a surgeon have a board certification by what’s called an ACGME training program.”

The PRS certification “is an ACGME training program, whereas cosmetic surgery is

not.” Consequently, she testified that she is prohibited “from obtaining cosmetic

surgery privileges at the local hospitals, including Northern Kentucky, because [she’s]

not board certified in plastic and reconstructive surgery.” This was said to include “all

the hospitals here,” including Christ Hospital, as well as “University of Cincinnati,

Jewish, Mercy, Mercy Anderson, [and] Mercy West.”

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶19} When asked how she became involved in the fellowship with Dr.

Mandell-Brown, she said that she approached him in 2021 to learn more about the

training and also spend a day at the practice observing surgery. At the time, he had

not accepted a fellow for the following cycle. He mentioned that, because she was from

Cincinnati, it would be nice to have her as a fellow and have her potentially stay on and

practice thereafter if things went well. She entered into a fellowship agreement with

Dr. Mandell-Brown on October 4, 2021. Her annual salary as a fellow was $25,000,

without bonuses. The first six months of the fellowship “are spent learning and

observing surgery with Dr. Mandell-Brown.” After that, the fellow can have their own

independent cases at the discretion of Dr. Mandell-Brown. The fees from her work as

a fellow went to MMBI. During her time as a fellow, she worked primarily at the

Montgomery-Road location and “intermittently” at a location “in Springboro or south

of Dayton.” She claimed to be at the Cincinnati office 90 percent of the time. She said,

“It was maybe one day a month when we would travel to Dayton.”

{¶20} At the end of her fellowship, she was offered a two-year associate

position. As part of this position, she entered into an employment agreement and her

salary was increased to $275,000 a year, with a bonus opportunity. Throughout her

employment, discussions were held about a potential buy-in to the practice at the end

of her two-year position. So, when she was called to a meeting with Dr. Mandell-

Brown in August 2024, she was under the impression that the meeting was to discuss

more details of the practice purchase. Instead, she was “let go from the practice due

to lack of productivity and just not making good business sense for the corporation.”

{¶21} She has now opened a medical office in Cheviot, which is 30-45 minutes

from her home. Beyond that, she has limited general surgery privileges at TriHealth

and has obtained general and cosmetic surgery privileges at Highland District Hospital

14 OHIO FIRST DISTRICT COURT OF APPEALS

in Hillsboro, Ohio, which is about an hour away.

{¶22} When asked why she can’t perform surgery at her own office, she said,

“I do some local procedures there, but because it’s not a certified surgery center I am

unable to do any types of procedures that require anesthesia.” She testified that,

typically, most surgeons report that it takes 18 to 24 months to build a surgery center

and “maintain all of the certifications for use.” Further, she testified that it would take

six months to a year to get all her general surgery privileges back.

B. As Provided by Dr. Mandell-Brown

{¶23} Dr. Mandell-Brown testified as to why he has “unique and customized

surgical skills or approaches.” He first said he has a unique method of patient

consultation, which he does not “always see . . . done around the city and in the

country.” He testified about how he instructed Dr. Maccarone on her consultation

skills.

{¶24} He further testified about his claimed unique surgical techniques.

Regarding breast augmentation, he said that he uses an approach that he suggested

was unique to this area—but not original, as he learned it from a friend in Texas.

Regarding tummy tucks, he implied that his technique was not “special” to him but is

not always done. He also claimed to teach his fellows to place the stiches in a certain

manner that results in “superior” outcomes and “possibly” gives him a competitive

advantage. Regarding facelifts, he said that he tries to “specialize a facelift for the

patient’s needs.” Regarding injections, he uses a practice for which he “claims no

origination” as he learned it from a doctor in Kansas. Regarding liposuction, he

testified that he is different from his competitors in that “some of [his] competitors

and colleagues [are] not turning down anybody.” He further said that he differs from

some of his competitors where he does long-term, follow-up care and in-person office

15 OHIO FIRST DISTRICT COURT OF APPEALS

visits, while some others do virtual visits or no follow-up care. He also claimed that,

when he came to the area, most competitors were doing procedures under general

anesthesia, rather than IV sedation, whereas now only 40 to 50 percent do it under

general anesthesia.

{¶25} He next testified about the alleged value of his business’s financial

information to his competitors. He said, “So unfortunately Cincinnati is a very

competitive city -- almost a cutthroat city -- and my competitors would love to have

this information.” He said that he shared certain financial information with Dr.

Maccarone in anticipation of her joining the practice that he would not have provided

in the absence of the confidentiality agreement. Further, Dr. Maccarone was present

at board meetings wherein they discussed “deliberately and in great detail everything

that transpired in the surgical centers, including risk management, quality issues,

number of cases that we’ve done, number of specific cases: facelifts, rhinoplasties,

liposuction,” and discussed future plans and marketing strategies based on patient

data and satisfaction surveys. When asked what value the information from the board

meetings would have to his competitors, he said, “Well, it’s just privy to the way we

conduct our business. It’s a 20-page report that we went through today. It’s very

thorough.”

{¶26} Regarding pricing, he testified that his pricing was part of his practice’s

competitive strategy and said his competitors “would love to know exactly what we

charge everybody” because it is a competitive market in Cincinnati. He claimed that

competitor access to this information “could be helpful” in undercutting his ability to

attract patients. By virtue of her employment with the practice, Dr. Maccarone is

familiar with his pricing strategy.

{¶27} Regarding advertising, he testified that the company annually markets

16 OHIO FIRST DISTRICT COURT OF APPEALS

the 15-to-20-mile radius that overlaps the restricted area in the noncompete. He

explained the practice’s advertising of Dr. Maccarone during her employment within

this area and said that he would not have done this advertising in the absence of the

noncompete agreement.

{¶28} When asked to estimate the impact if Dr. Maccarone were able to

practice in the restricted area and “affiliate with one of [his] competitors,” he

answered, “I can’t put a dollar number it could be, but I think it would be irreparable

harm.” When asked by the trial court about his claim of irreparable injury and why

allowing Dr. Maccarone to practice in the restricted area would be unfair competition,

rather than ordinary competition, he said,

I put 150 percent in everything I do. I do. You don’t know that,

but you have to take my word for it.

When I train these fellows, these ten fellows, I give them my

medical expertise. I’m a sought-after medical expert around the

country. I don’t advertise. I’m imparting safety on them. I am

imparting my credentialing. I was a surveyor and am a surveyor for

AAAHC on their board of directors, chairman of their survey and

education.

I’m imparting that information to these doctors -- these ten

doctors.

I’m imparting my ENT training, which was in the top three

programs in the country. My facial plastic training was probably in the

top two in the country. And all that education and training I am pouring

into these individuals.

And I take everything I do to heart. When they do the

17 OHIO FIRST DISTRICT COURT OF APPEALS

consultations, I want them to make sure they understand how to relate

to patients.

As a general surgeon, Dr. Maccarone didn’t get that. That’s not

how general surgeons act with patients. They see them once, they see

them afterwards, and that’s it. They’re done.

Cosmetic is a whole different way. It’s a way of thinking. I am

passionately giving them that information. And I’m doing it because I

want to commit to our profession, to grow the practice. And it’s a

commitment to expand our academy.

And so I want them to go out and be successful. I want them to

go out and contribute to our academy in educational and committees

and even in leadership, but I don’t want them in my backyard.

I can’t train and give them everything I’ve given and let them be

down the street from me.

And I’ve trained ten of them. I can’t have -- I just won’t do it. I

put too much into it to train my own competition. I’m cutting off my

own throat.

I want her to be successful. I want her to contribute to our

academy, but I don’t want her in my backyard.

And in general 15 miles, which she asked for in her own words -

- I used to have 20. She said can we do 15 and we mutually agreed.

This has nothing to do with anything, but my dad is 98 years old.

He lives in his own apartment in Columbus, and he is a World War II

veteran. And the only thing he taught me is honor. And you honor your

word, and you honor your verbal agreement, and you certainly honor

18 OHIO FIRST DISTRICT COURT OF APPEALS

your written agreement.

The fellow that I had yesterday, I brought him here. I didn’t have

to. This is noncompete. He’s going to benefit if she wins. You enforce

it.

So -- but I wanted him to see it because this is his education.

But he told me on the way home, he said I would honor what I

agreed with you because that’s what we decided and . . . the great

generation . . . the great generation, they had honor.

IV. The Preliminary Injunction

{¶29} Dr. Maccarone filed a motion for a preliminary injunction enjoining

enforcement of “the non-competition restrictions and illegal restraints on trade” in the

employment agreement with MMBI, or, in the alternative, an order enjoining

enforcement of “the post-employment restrictions as applied to (1) locations more

than five miles away from MMB[I]’s offices, and/or (2) any hospitals or private

surgical centers where Dr. Maccarone may perform cosmetic surgeries, during the

pendency of this case.” The motion asserted that the noncompete agreement was

“illegal, invalid, and unenforceable” for three reasons: (1) “MMB[I] lacks a legitimate

business interest to enforce any post-employment non-competition restrictions upon

Dr. Maccarone in the practice of medicine, because there is no actual or potential risk

or evidence of unfair competition by Dr. Maccarone,” (2) “[t]he restrictive covenants

are patently and substantively ‘unreasonable’ in all respects -- including the temporal,

geographic, and subject matter restrictions -- under the Raimonde factors, Ohio law,

and the facts of the case,” and (3)

[a]ny reasonable and equitable reformation of the restrictions, reducing

the unreasonable restraints on trade to any alleged ‘legitimate business

19 OHIO FIRST DISTRICT COURT OF APPEALS

interest’ or need to protect against unfair competition, if any, would

require the restrictions to be reduced to a one year, five-mile radius

from the MMB[I] Montgomery office, with such restrictions solely

applying to the medical office where Dr. Maccarone may work or meet

patients, and not to the surgery locations where she may perform

surgery.

(Emphasis in original.)

{¶30} MMBI filed a memorandum in opposition to Dr. Maccarone’s motion

for a preliminary injunction, in which it argued that Dr. Maccarone’s request for a

preliminary injunction must be denied where “unclean hands bar equitable relief, she

cannot meet her burden to establish entitlement to injunctive relief by clear and

convincing evidence, and the weighing of the Raimonde factors requires enforcement

of the non-compete agreement she voluntarily negotiated.” The motion further

asserted that “[t]he same facts that mandate denial of Dr. Maccarone’s motion require

granting MMB[I] declaratory relief as set forth in Count IX of its Counterclaim.”

Therefore, MMB[I] moved the trial court to declare “the noncompete provision in Dr.

Maccarone’s employment agreements to be reasonable and enforceable.”

{¶31} Ultimately, after initial briefing, a hearing, and posthearing briefing/

written closing arguments, the trial court entered an order granting the preliminary

injunction on January 30, 2025. First, the trial court found that there is a substantial

likelihood that Dr. Maccarone will prevail on the merits as the noncompete agreement

is unenforceable where (1) there is no evidence that Dr. Maccarone’s competition is

unfair to MMBI so limiting her ability to compete is merely preventing ordinary

competition, and (2) even if there is a “legitimate interest in preventing competition

because Dr. Maccarone’s knowledge allowed her to compete unfairly, the

20 OHIO FIRST DISTRICT COURT OF APPEALS

approximately six months that she has already complied with the agreement is more

than sufficient.” In doing so, the trial court found that (1) Dr. Maccarone has a

“fundamentally different take on how to practice cosmetic surgery and how to run a

practice,” (2) Dr. Maccarone “is not using confidential information or trade secrets to

replicate a practice based on the practice run by Dr. Mandell-Brown,” (3) the surgical

techniques that Dr. Maccarone learned while employed at MMBI “are not confidential

or trade secrets,” (4) Dr. Maccarone disposed of the financial information she had

access to, as requested, and (5) the pricing strategy that Dr. Maccarone has knowledge

of is not a trade secret. Additionally, the trial court found that (1) Dr. Maccarone will

suffer irreparable harm in the absence of a preliminary injunction as her inability to

practice would result in the loss of her surgical skills, which is harm that cannot be

compensated with money damages, (2) there is no evidence that third parties will be

unjustifiably harmed, and (3) the public interest is served as the law does not favor

restrictive covenants.

{¶32} MMBI now appeals and argues in a single assignment of error that the

trial court erred in granting Dr. Maccarone’s motion for a preliminary injunction.

V. Requirements for a Preliminary Injunction

{¶33} To prevail on a request for a preliminary injunction, a party must show

by clear and convincing evidence that “(1) there is a substantial likelihood that she/he

will prevail on the merits, (2) she/he will suffer irreparable injury if the injunction is

not granted, (3) no third parties will be unjustifiably harmed if the injunction is

granted, and (4) the public interest will be severed by the injunction.” Castillo-Sang

v. Christ Hosp. Cardiovascular Assocs., LLC, 2020-Ohio-6865, ¶ 16 (1st Dist.), citing

Proctor and Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267-268 (1st Dist. 2000).

“In determining whether to grant or deny injunctive relief, a court must balance all

21 OHIO FIRST DISTRICT COURT OF APPEALS

four factors, and no single factor is dispositive.” Id., citing Brookville Equip. Corp. v.

Cincinnati, 2012-Ohio-3648, ¶ 11 (1st Dist.).

{¶34} “Whether to grant or deny an injunction is within the discretion of the

trial court, and a reviewing court will not disturb the judgment of the trial court absent

an abuse of discretion.” Id., citing Banker’s Choice, LLC v. Zoning Bd. of Appeals of

City of Cincinnati, 2018-Ohio-3030 (1st Dist.), and Garono v. State, 37 Ohio St.3d 171,

173 (1988). “‘An abuse of discretion occurs when “a court exercise[es] its judgment,

in an unwarranted way, in regard to a matter over which is has discretionary

authority.”’” Kross Acquisition Co, LLC v. Groundworks Ohio LLC, 2024-Ohio-592, ¶

17 (1st Dist.), citing State v. Austin, 2021-Ohio-3608, ¶ 5 (1st Dist.). “An abuse of

discretion ‘implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

A. Likelihood of Success on the Merits

{¶35} The Ohio Supreme Court has held that “a noncompetition agreement is

reasonable ‘if the restraint is no greater than is required for the protection of the

employer, does not impose undue hardship on the employee, and is not injurious to

the public.’” Id. at ¶ 18, citing Raimonde v. Van Vlerah, 42 Ohio St.2d 21 (1975),

paragraph two of the syllabus.

Among the factors to be considered in determining whether a

particular noncompetition agreement is reasonable are: (1) whether the

agreement contains time and space limitations; (2) whether the

employee is the sole contact with the customer; (3) whether the

employee has confidential information or trade secrets; (4) whether the

covenant seeks to limit only unfair competition or is designed more

broadly to eliminate ordinary competition; (5) whether the agreement

22 OHIO FIRST DISTRICT COURT OF APPEALS

seeks to stifle the employee’s inherent skill and experience; (6) whether

the benefit to the employer is disproportional to the detriment to the

employee; (7) whether the agreement bars the employee’s sole means of

support; (8) whether the skills that the agreement seeks to restrain were

actually developed during the employment; and (9) whether the

forbidden employment is merely incidental to the main employment.

Id., citing Raimonde at 25.

1. Whether the Agreement Contains Time and Space Limitations

{¶36} The noncompete agreement does contain time and space limitations.

Under the terms of the employment agreement, the restrictive covenants are to be in

place “during this Agreement, and for a period of two (2) years after termination of

Employee’s Employment with the Practice.” Further, the restrictive covenants apply

to the “Restricted Area,” which is defined in the agreement as “a fifteen (15) mile radius

‘as the crow flies’ of the Practice’s main office at 10735 Montgomery Road, Cincinnati,

Ohio 45242 and a fifteen (15) mile radius of the Practice’s satellite office at 1512 Yankee

Park Place, Centerville, Ohio 45458.” The Commonwealth of Kentucky is not included

in the “Restricted Area.” Further, it should be noted that MMBI is not seeking to

enforce the noncompete agreement as it relates to the satellite office. It is only seeking

to enforce the 15-mile radius “as the crow flies” from “the Practice’s main office.”

2. Whether the Employee is the Sole Contact with the Customer

{¶37} This factor does not appear to be at issue. Nevertheless, the suggestion

from the record is that Dr. Maccarone was not the sole contact with the patients of the

practice. She testified about a “change in policy” in October 2023 where no new

patients were to be scheduled with her unless they specifically asked for her by name.

If they had not, they were to be scheduled with Dr. Mandell-Brown even if it would

23 OHIO FIRST DISTRICT COURT OF APPEALS

cause delay.

3. Whether the Employee has Confidential Information or Trade Secrets

{¶38} Regarding confidential information, MMBI argues that Dr. Maccarone

has access to financial information, pricing information, and business operation

information.

{¶39} Regarding financial information, MMBI points to information that Dr.

Maccarone received in a “valuation computation.” In particular, MMBI focuses on

page 17 of this report, which includes revenue and expense information for the practice

in 2021, 2022, and 2023. Dr. Maccarone testified that she was only allowed to review

the physical copy presented to her for around 45 minutes. Additionally, she testified

that the electronic copy she received was “disposed of as requested by Dr. Mandell-

Brown.” Notably, Dr. Mandell-Brown was questioned on cross-examination as to

whether he could testify about the exact financial figures provided in the valuation and

he said that he could not do so without seeing an unredacted copy of the document.

Dr. Maccarone is also subject to a nondisclosure agreement regarding this

{¶40} Regarding pricing, Dr. Mandell-Brown testified that pricing

information is not publicized and is part of the practice’s competitive strategy, and that

Dr. Maccarone had access to this information during her employment and knows

where MMBI’s pricing falls on the “spectrum of pricing” in the area. However, he also

testified that he tells his patients what they will be charged and does not require them

to sign a nondisclosure agreement when doing so.

{¶41} Regarding both the financial information and pricing information, Dr.

Mandell-Brown was asked during his testimony what value this information would

24 OHIO FIRST DISTRICT COURT OF APPEALS

have to his competitors, and he answered that his competitors “would love” to have

“this information” and “know what we charge everybody.” However, when asked if

competitors having the pricing information would “undercut the pricing of” the

practice and the ability to attract patients, Dr. Mandell-Brown answered, “Well,

pricing is only one factor in attracting patients, but it is an important factor. So, yes,

it could be helpful.”

{¶42} Lastly, regarding business operation information, Dr. Mandell-Brown

testified that Dr. Maccarone was present at the annual board meeting wherein

business operation information was discussed including “everything that transpired

in the surgical center, including risk management, quality issues, number of cases that

we’ve done, number of specific cases: facelifts, rhinoplasties, liposuction.” When

asked the value of this information to competitors, Dr. Mandell-Brown said, “Well, it’s

just privy to the way we conduct our business.”

{¶43} Dr. Maccarone denied having “any documents or information from”

MMBI’s office. Additionally, in her supplemental affidavit—which was admitted as an

exhibit at the hearing—Dr. Maccarone averred, “I possess no confidential or trade

secret information of any kind concerning MMB[I] or Dr. Mandell-Brown.” She

further said, “I have no knowledge of Dr. Mandell-Brown’s marketing plans, other

than his widespread use of billboard marketing, which is not a secret. I do not possess

any patient lists or patient contact information. I do not know anything relevant about

Dr. Mandell-Brown’s business, finances, or practice, which cannot be gleaned from his

affidavit.”

{¶44} MMBI does not appear to argue on appeal that any of this is a “trade

secret.” To the extent that it claims certain surgical techniques are “trade secrets,” this

is addressed under the eighth factor below.

25 OHIO FIRST DISTRICT COURT OF APPEALS

4. Whether the Covenant Seeks to Limit Only Unfair Competition or is Designed More Broadly to Eliminate Ordinary Competition

{¶45} The employment agreement expressly states that the restrictive

covenants are “necessary for the protection of the Practice’s business, trade secrets

and confidential information and to prevent damage or loss to the Practice as a result

of actions taken by the Employee.”

{¶46} To the extent that the noncompete agreement seeks to protect the

identified “confidential” information, it is designed to prevent unfair competition.

However, nothing in the record establishes that the noncompete agreement, as

written, is necessary to protect this information. The noncompete agreement is for

two years and seeks to prevent Dr. Maccarone from practicing “individually, in

partnership, or through a corporation or any other entity as a proprietor, owner, or

manager, employee, stockholder, consultant, independent contractor, or otherwise, in

the practice of facial and/or body cosmetic medicine, or liposuction.” Thus, the

noncompete agreement seeks to prevent her from practicing cosmetic medicine in any

capacity, which is broader than necessary to protect the identified “confidential”

information. Further, there is nothing in the record to establish why it is necessary to

enforce the noncompete agreement for two years to protect the “confidential”

{¶47} The trial court modified the noncompete agreement to be limited to the

term of the agreement that Dr. Maccarone has already complied with (approximately

six months). MMBI does not point to any evidence in the record or cite to any

authority to show that such a finding was an abuse of discretion. Rather, it argues that

“[h]aving to practice outside the 15-mile radius for two years is [a] small inconvenience

compared to benefits she obtained.” This argument does not establish why a two-year

26 OHIO FIRST DISTRICT COURT OF APPEALS

noncompete agreement is reasonable and necessary, rather than the six-month

restriction.

5. Whether the Agreement Seeks to Stifle the Employee’s Inherent Skill and Experience

{¶48} The agreement seeks to stifle Dr. Maccarone’s skill and experience

regarding the practice of cosmetic surgery, but not general surgery.

6. Whether the Benefit to the Employer is Disproportional to the Detriment to the Employee

{¶49} Regarding this factor, MMBI appears to argue that the benefit to MMBI

would be preventing Dr. Maccarone from “treating patients that MMB[I] competes

for,” and “padding the bottom line of MMB[I]’s competitors by earning them facility

and anesthesia fees for procedures that would not otherwise be performed.”

{¶50} Notably, nothing about the noncompete agreement, in and of itself,

would prevent Dr. Maccarone from treating MMBI’s patients outside the noncompete

area. Rather, it seems that the nonsolicitation agreement would be the restriction in

the employment agreement that provides this benefit, and the nonsolicitation

provision does not appear to be at issue for purposes of the preliminary injunction.

Nevertheless, from a general business perspective, MMBI would certainly benefit from

not having to compete with Dr. Maccarone within the restricted area.

{¶51} On the other hand, the detriment to Dr. Maccarone is that she is unable

to perform cosmetic surgery anywhere close to her home and is fully excluded from

competing in the market that she trained and invested in.

7. Whether the Agreement Bars the Employee’s Sole Means of Support

{¶52} The noncompete agreement does not bar Dr. Maccarone’s sole means of

support. She testified that she has limited general surgery privileges at TriHealth and

general and cosmetic privileges at the Hillsboro hospital (Highland District Hospital).

27 OHIO FIRST DISTRICT COURT OF APPEALS

Additionally, she has been able to perform a few liposuctions at an office adjacent to

her new office and can continue to do so, subject to the availability of that office.

8. Whether the Skills that the Agreement Seeks to Restrain Were Actually Developed During the Employment

{¶53} The restrictive covenants in the employment agreement expressly state,

“The purpose of the above covenants are to protect the Practice from the irreparable

harm it will suffer if Employee competes in its territory after having been employed by

the Practice and introduced to its referring physicians and patients, and after learning

the Practice’s special medical procedures, business procedures, office and practice

policies and its employed physicians and/or taught to Employee in the course of the

Employee’s employment relationship.”

{¶54} While the employment agreement does not expressly define

“employment relationship,” Section 1 of the employment agreement is entitled

“Employment Relationship,” and sets forth the expectations for “employment by the

Practice,” which “shall begin on or about October 1, 2022 and continue for two years.”

Thus, the “employment relationship” referenced in the restrictive covenants refers to

Dr. Maccarone’s employment term with MMBI that began upon completion of the

fellowship and does not include Dr. Maccarone’s fellowship term with MMBI.

{¶55} Rather, the fellowship term was covered by the “Fellowship Agreement”

in the record, which contains its own restrictive covenants. The restrictive covenant

in the fellowship agreement that is relevant here (“the fellowship noncompete

restriction”) states,

In so far [sic] as the Fellow is privy to the patient demographics,

marketing strategies, and confidential business details, a restrictive

covenant is imposed to protect the interests of [MMBI]. The fellow

28 OHIO FIRST DISTRICT COURT OF APPEALS

employee shall be prohibited from starting a cosmetic Facial and/or

body cosmetic practice for 2 years from our main office . . . as well as

our satellite office . . . and within 15 miles distance as the crow flies from

each office. . . . This 2 year restriction begins upon completion of the

Fellowship year or upon leaving the Fellowship during the Fellowship

year.

{¶56} Notably, under the terms of the fellowship agreement, the fellowship

noncompete restriction began on October 3, 2022 (the final day of the Fellowship

year), and thus expired on or around October 3, 2024. The complaint was filed just

shy of expiration of the fellowship noncompete restriction on September 16, 2024, and

the trial court granted the preliminary injunction after expiration of the fellowship

noncompete restriction on January 30, 2025.

{¶57} We note that the employment agreement begins by stating, “This

Agreement supersedes all prior agreements among the parties related to the subject

matter hereof.” Therefore, it is not clear whether the fellowship noncompete

restriction would still be enforceable. However, the enforceability of the fellowship

noncompete restriction is not before this court, so we need not make any

determinations on this issue.

{¶58} Nevertheless, it is notable that the fellowship agreement does not state

that the fellowship noncompete restriction is necessary based on any training

imparted to Dr. Maccarone during her fellowship. And because the restrictive

covenants in the employment agreement only apply to things learned by or taught to

Dr. Maccarone during the two-year employment term with MMBI, any skills that she

acquired during the fellowship would not be skills “actually developed during the

employment,” as the “employment” at issue did not begin until after the fellowship

29 OHIO FIRST DISTRICT COURT OF APPEALS

was over.

{¶59} On appeal, MMBI argues that it “opened every aspect of the practice to”

Dr. Maccarone, and Dr. Mandell-Brown taught her “how to consult effectively with a

patient about an elective procedure with options, a far more collaborative consultation

compared to a general surgeon who meets with a patient with a medically necessary

surgery.” Further, it is alleged that Dr. Mandell-Brown taught Dr. Maccarone “the full

panoply of cosmetic procedures and [Dr. Mandell-Brown’s] unique approaches to

augmentation, facelifts, injections, liposuction, and anesthesia.”

{¶60} In the referenced testimony, Dr. Mandell-Brown testified that he taught

Dr. Maccarone his “unique method of consultation” during her fellowship. Further,

Dr. Mandell-Brown testified that he taught Dr. Maccarone his “unique” surgical

approaches to breast augmentation and face lifts during her fellowship.

{¶61} Beyond that, Dr. Mandell-Brown testified about his admittedly

nonoriginal approach to injections but did not specify who he taught these skills to, or

when. Regarding liposuction, Dr. Mandell-Brown testified that he teaches the

“fellows” to screen patients who really shouldn’t have the procedure. He also testified

about his post-liposuction care but said he was not sure that the approach “differed

that much” from his competitors. He further testified about his “long-term follow up

care and regular in-person office visits,” and said that this differs from “some” of his

competitors that either see patients virtually for follow-up care or have patients seen

by staff for follow-up care, rather than the doctor. However, he did not testify as to

who he taught these postoperative-care techniques to, or when. Further, he testified

that he learned that Dr. Maccarone does postoperative care different from him as she

“does a virtual Facetime follow up with her patient.” Notably, his testimony appears

to indicate that this was how Dr. Maccarone was doing postoperative care during her

30 OHIO FIRST DISTRICT COURT OF APPEALS

employment with MMBI, as he said he learned about her use of FaceTime from

another fellow. He said, “I found out because my last fellow, a patient that I gave her,

was supposed to follow my protocol, didn’t come in to examine the patient. She did it

Facetime. I said that’s not how I do it. You’re supposed to follow me. Well, that’s how

Dr. Maccarone does it.”

{¶62} Regarding anesthesia, he testified that he started the use of IV sedation,

rather than general anesthesia, for facelifts and rhinoplasty in the area when he “first

came to town.” However, he also said that only “40 or 50 percent” of the practices in

the area still do it under general anesthesia. This suggests that 50 to 60 percent of

other practices in the area also now use this approach to sedation. Further, he did not

testify as to who he taught these skills to, or when. Lastly, regarding tummy-tuck

sutures, Dr. Mandell-Brown testified that he teaches “the fellows” about the sutures.

{¶63} Thus, the referenced testimony does not establish any skills “actually

developed” by Dr. Maccarone during her employment term with MMBI, rather than

during the fellowship term.

{¶64} This is supported by Dr. Mandell-Brown’s testimony in response to a

question from the trial court about why enforcement of the noncompete would be

unfair, in which he testified heavily about how it is unfair for fellows to be allowed to

compete “in [his] backyard.” He said training his own competition would be “cutting

off [his] own throat.” Thus, the testimony clearly shows that MMBI is concerned about

the use of skills that Dr. Maccarone developed during the fellowship, not skills

developed during the subsequent employment.

{¶65} This is further supported by Dr. Maccarone’s testimony, in which she

indicated that during the term of her employment as an associate, they each treated

their own patients, unless they were covering for each other. Additionally, in her

31 OHIO FIRST DISTRICT COURT OF APPEALS

supplemental affidavit submitted in support of the temporary injunction—which was

also admitted as an exhibit at trial—, she avers, “After I completed the MMB[I]

fellowship program, I have had very limited involvement or exposure to any of Dr.

Mandell-Brown’s surgeries.” She further said, “Dr. Mandell-Brown does not have any

‘unique or customized’ surgical skills or approaches, to my knowledge. My own skills,

techniques, and practices are significantly different than Dr. Mandell-Brown, as I

developed my core surgical skills, my interactions with patients, and my techniques

over the eight years of general surgical experience.”

{¶66} Therefore, the record does not reveal that the skills at issue were actually

developed during the employment at issue, which is Dr. Maccarone’s employment as

an associate, not as a fellow.

{¶67} Further, to the extent that MMBI is claiming these techniques are “trade

secrets” that need protection, the record fails to support this. Under R.C. 1333.61(D),

‘Trade secret’ means information, including the whole or any

portion or phase of any scientific or technical information, design,

process, procedure, formula, pattern, compilation, program, device,

method, technique, or improvement, or any business information or

plans, financial information, or listing of names, addresses, or

telephone numbers, that satisfies both of the following:

(1) It derives independent economic value, actual or potential,

from not being generally known to, and not being readily

ascertainable by proper means by, other persons who can obtain

economic value from its disclosure or use.

(2) It is the subject of efforts that are reasonable under the

circumstances to maintain its secrecy.

32 OHIO FIRST DISTRICT COURT OF APPEALS

{¶68} Nothing in the record indicates any efforts to maintain the secrecy of

these claimed “unique” techniques. See generally Hanneman Family Funeral Home

& Crematorium v. Orians, 2023-Ohio-3687, ¶ 15 (stating that, among other things, a

party claiming trade secrets must “take some active steps to maintain its secrecy.”).

9. Whether the Forbidden Employment is Merely Incidental to the Main Employment

{¶69} The forbidden employment is not merely incidental to the main

employment. Rather, the noncompete agreement seeks to prevent Dr. Maccarone

from engaging, “individually, in partnership or through a corporation or any other

entity as a proprietor, owner, manager, employee, stockholder, consultant,

independent contractor, or otherwise, in the practice of facial and/or body cosmetic

medicine, or liposuction.” Thus, the noncompete agreement seeks to restrain the exact

employment at issue, which is the practice of cosmetic medicine.

10. The Record Supports that Dr. Maccarone is Likely to Succeed on the Merits as the Record Supports the Trial Court’s Determination that the Noncompete Agreement is Unreasonable

{¶70} Based on consideration of the evidence within the context of the

Raimonde factors, the record supports that the noncompete agreement is greater than

required for the protection of MMBI. Therefore, the record supports the trial court’s

determination that the noncompete agreement, as written, is unreasonable.

Consequently, the trial court’s determination that there is a substantial likelihood that

Dr. Maccarone will succeed on the merits is also supported by the record.

B. Irreparable Harm

{¶71} MMBI further challenges the trial court’s finding that Dr. Maccarone

would be irreparably harmed “if her noncompete promise was enforced” where such a

finding “relied on the speculative notion that Dr. Maccarone would lose her surgical

33 OHIO FIRST DISTRICT COURT OF APPEALS

skills if the agreement was enforced.”

{¶72} At the hearing, Dr. Maccarone was asked why it was important for a

surgeon to be active. She answered,

That’s actually why the hospitals require case logs to begin with

because surgeons who aren’t active or performing surgery can begin to

lose their skills and efficiency, quality, all those things. Typically, in an

informal way, taking more than six months away from operating for a

surgeon is –requires some kind of remediation or reentry.

She further said it potentially impacts patients as it “contributes to safety, quality,

[and] efficiency.”

{¶73} The evidence presented by Dr. Maccarone established that she has been

denied privileges at area hospitals in cosmetic surgery as she did not have the proper

certification. The only hospital that she was able to obtain privileges from was a

hospital in Hillsboro, which is over an hour away. She is also able to perform

liposuction procedures at a practice adjacent to her new practice but is “limited by the

amount of usage that he has for his practice.” She is in the process of obtaining

privileges at a private surgery center in Dayton; however, she testified that her patients

have “expressed hesitation to have their surgery there because it’s so far.”

{¶74} Because of her limited options, she is seeking to be able to complete

surgeries at local surgical centers, similar to Dr. Mandell-Brown’s practice, which is

also a surgical center (and presumably where she conducted surgery during her

employment with MMBI). However, she is restricted from doing so because of the

{¶75} Given the evidence in the record that Dr. Maccarone’s ability to practice

cosmetic surgery is being stifled and that such inactivity can cause loss of skill, this

34 OHIO FIRST DISTRICT COURT OF APPEALS

court cannot conclude that the trial court abused its discretion in finding that Dr.

Maccarone would be irreparably harmed in the absence of the preliminary injunction.

C. Harm to Third Parties and Public Interest

{¶76} MMBI does not present any argument challenging the trial court’s

findings on the absence of harm to third parties or the public interest.

VI. Conclusion

{¶77} Based on the foregoing, we hold that the trial court did not abuse its

discretion when granting Dr. Maccarone’s request for a preliminary injunction as the

trial court’s decision was not unreasonable, arbitrary or unconscionable. Therefore,

we overrule the assignment of error and affirm the judgment of the trial court.

Further, we dismiss the appeal of Dr. Mandell-Brown for lack of standing.

Judgment affirmed and appeal dismissed in part.

KINSLEY, P.J., and NESTOR, J., concur.